Hazel Tatum Bowers Estate v. Cleveland Ellis ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-2776
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Florida Ewings, Administratrix of *
Estate of Hazel Tatum Bowers with *
will annexed, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Cleveland Robert Ellis, * Eastern District of Arkansas.
*
Appellant, * [UNPUBLISHED]
*
v. *
*
Bank of America, *
*
Appellee. *
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Submitted: December 29, 2008
Filed: January 23, 2009
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Before MELLOY, COLLOTON, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Cleveland Robert Ellis appeals the district court’s1 28 U.S.C. § 1447(c) order
remanding this unlawful detainer action against him to state court. We first note that
the remand order is unreviewable to the extent it was based on the district court’s lack
of subject matter jurisdiction, but it is reviewable to the extent Ellis attempted to
remove the action from state court based on 28 U.S.C. § 1443. See 28 U.S.C.
§ 1447(d) (remand order is not reviewable on appeal, except that remand of case that
was removed pursuant to § 1443 is reviewable). Upon careful review of Ellis’s
assertions to support removal under section 1443, we conclude that removal was not
warranted under that provision. See Georgia v. Rachel, 384 U.S. 780, 800 (1966)
(removal under § 1443(1) is warranted “only if it can be predicted by reference to a
law of general application that the defendant will be denied or cannot enforce the
specified federal rights in the state courts”); City of Greenwood, Miss. v. Peacock, 384
U.S. 808, 814-15 (1966) (§ 1443(2) is available only to federal officers and persons
assisting such officers in performance of official duties); see also Bizzle v. McKesson
Corp., 961 F.2d 719, 721 (8th Cir. 1992) (in reviewing case on appeal, court may
affirm on any ground supported by record, even though that ground was not addressed
in court below).
Accordingly, we affirm. See 8th Cir. R. 47B.
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1
The Honorable J. Leon Holmes, Chief Judge, United States District Court for
the Eastern District of Arkansas.
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